United States District Court, D. Delaware
Terrell Gee. Pro se petitioner.
Elizabeth R. McFarlan, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for respondents.
SUE F. ROBINNSON, District Judge.
Currently before the court is Terrell Gee's ("petitioner") amended application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. (D.I. 9) For the reasons that follow, the court will dismiss petitioner's § 2254 application as time-barred by the one-year period of limitations prescribed in 28 U.S.C. § 2244(d)(1).
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 16, 2006, the Wilmington Police Department received a complaint that a ten year old girl ("S.D.") had been sexually abused. (D.I. 16 at 1) S.D. was interviewed at the Chidren's Advocacy Center on August 10, 2006. She told a forensic investigator that petitioner had raped her on more than twenty-one occasions betwen January 2005 and June 2006. Id. Petitioner and S.D. were cousins. See State v. Gee, 2009 WL 3720165, at *1 (Del. Super. Nov. 3, 2009).
Petitioner was subsequently indicted on five counts of second degree rape. In March 2007, a Superior Court jury found petitioner guilty of three of the five rape counts. On June 22, 2007, the Superior Court sentenced petitioner to a total of thirty-six years at Level V incarceration, suspended after thirty years for a tern of probation. The Delaware Supreme Court affirmed petitioner's convictions and sentence on June 4, 2008. See Gee v. State, 950 A.2d 658 (Table), 2008 WL 2267186 (Del. June 4, 2008).
On June 3, 2009, petitioner filed in the Superior Court his first motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). (D.I. 18, Del. Super. Crim. Dkt. Entry No. 33) The Superior Court denied the Rule 61 motion on November 3, 2009. See State v. Gee, 2009 WL 3720165 (Del. Super. Nov. 3, 2009). Petitioner appealed, and the Delaware Supreme Court affirmed the Superior Court's judgment on September 23, 2010. See Gee v. State, 5 A.3d 630 (Table), 2010 WL 3719891 (Del. Sept. 23, 2010). Petitioner filed a sedond Rule 61 motion on January 24, 2011. See State v. Gee, 2011 WL 880851, at *1 n.14 (Del. Super. Feb. 23, 2011). The Superior Court denied the motion on February 23, 2011, and it does not appear that petitioner appealed that decision.
Petitioner's pending § 2254 application asserts one claim that defense counsel provided ineffective assistance by not requesting the minor victim S.D. to be examined by a defense medical expert. The State filed an answer, asserting that the application should be denied as time-barred or, alternatively, as procedurally barred. (D.I. 16) The application is ready for review.
III. ONE YEAR STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was signed into law by the President on April 23, 1996, and it prescribes a one-year period of limitations for the filing of habeas petitions by state prisoners. 28 U.S.C. § 2244(d)(1). The one-year limitations period begins to run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant ...